Two key provisions of the Housing and Planning Act will come into effect in England on 6 April

The widening of Rent Repayment Orders; and

New fixed penalty notices.

Rent Repayment Orders
Many readers will be familiar with Rent Repayment Orders in relation to HMOs and the Housing Act 2004. However, the new regime will widen the grounds on which a Rent Repayment Order can be obtained and will make the whole process easier. The Rent Repayment Order can now be sought for a wide range of offences including:

failure to apply for a HMO;

breach of a licence condition;

breach of the HMO Management Regulations;

breach of an HHSRS enforcement notice; and

using unlawful force to seek an eviction.

Rent Repayment Orders are made by the First-Tier Tribunal on the application of a local authority or tenant against a landlord. A tenant may only apply for the Rent Repayment Order if the offence was committed during the tenant’s tenancy and was committed in the period of 12 months prior to the day on which the application is made. A local authority may only apply for a Rent Repayment Order if the offence relates to housing in their area and they have previously served a notice on the landlord of intended proceedings. The notice of intended proceedings may not be given if more than 12 months have elapsed since the landlord committed the offence.

When making the Rent Repayment Order the Tribunal must be satisfied beyond reasonable doubt that a landlord has committed one of the offences listed above. However, the landlord does not have to have been prosecuted through the courts for a Rent Repayment Order to be made. In other words, a local authority or tenant can seek a Rent Repayment Order against a landlord who they believe has committed an offence even though they have not been prosecuted for it.

Where there has been a prosecution or the local authority has issued a penalty notice for an offence then any discretion of the Tribunal is very limited and they are expected to order the entire sum claimed, potentially all the rent for the last twelve months. Where there has been no prosecution or penalty notice, the Tribunal may exercise their discretion and should order the amount they consider reasonable in the circumstances.

The new provisions also place a positive obligation on a local authority to consider seeking a Rent Repayment Order where they can and they are also able to assist tenants by providing advice or even by conducting proceedings for a Rent Repayment Order.

Fixed Penalty
The new fixed penalty provision allows local authorities to choose to levy a financial penalty of up to £30,000 in respect of any offence under the Housing Act 2004 instead of seeking to prosecute. This applies to the same offences listed above.

The penalties are for each offence committed, so landlords could face multiple fines of up to £30,000 for multiple offences. However, each offence may not see the maximum fine imposed. Local authorities will be given government guidance to assist in setting an appropriate penalty for each offence.

Where financial penalties have been issued, a landlord has 28 days to make representations to the local authority after which the local authority will consider the representation and issue a final decision notice. Following the final decision, the landlord then 28 days to appeal to the First-Tier Tribunal.

Comment
Landlords will need to ensure that they comply with the new provisions of the Housing and Planning Act as failure to do so could be very costly. The process of applying for a Rent Repayment Order is being made easier and they can be sought even where the landlord has not been prosecuted, landlords are therefore strongly advised to review the requirements of the Housing Act 2004 and any local planning restrictions and make sure they are fully in compliance with them.

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Emma Somerset

Emma qualified as a solicitor in 2010 after completing her academic training at Bournemouth University and the University of Law, Guildford.

After undertaking her training contract at a large firm on the south coast she began her career with the same firm before accepting a position with PainSmith Solicitors in November 2012.

Emma specialises in all aspects of property litigation and can assist in resolving most disputes, regularly acting for landlords and land owners in connection with dilapidations disputes, forfeiture and possession claims, land registration disputes, building and boundary disputes, and recovery of arrears and other debts.

Emma is also able to draft up to date tenancy documentation, being fully conversant with all relevant requirements and guidance that applies to this heavily regulated and changing area. She has been praised for her ability to quickly understand her clients’ objectives and for offering commercial, pragmatic advice in a straightforward manner.

Alexandra Rusu

David Whitney is a solicitor and mediator. Prior to joining PainSmith five years ago he was a Partner in a West London practice. He has practised in the field of landlord and tenant law for about 20 years and has over the last 15 years developed a specialism in long residential leasehold work. His work encompasses dealing with all aspects of landlord and tenant including dilapidations claims, repossessions, enfranchisement, lease extensions, RTM applications and service charge disputes to name a few. In the past 12 months alone David has assisted over 200 hundred flat owners to either purchase their freehold or extend their lease. David understands the, often, competing interests of differing parties and prides himself on giving clients pragmatic and commercial advice. David also sits as a fee-paid Judge of the First Tier Tribunal (Property Chamber) on the Southern Region and as a member of its mediation panel.

Laura Simpson

Laura graduated from the University of Portsmouth in 2013 with a degree in Law with Business. This year, Laura also completed the Legal Practice Course.

Prior to joining PainSmith Solicitors, Laura worked for a local council. She has the experience and knowledge to confidently handle her own caseload across a range of property matters and uses her understanding of business to ensure that she produces practical commercial solutions to client’s problems.

Sian Meredith

Sian graduated from the University of Portsmouth in 2015. Sian has an in-depth knowledge of possession proceedings and debt recovery.

Sian will commence her LPC in September 2016.

Richard Pulford

Richard came to PainSmith in August 2011 as a Paralegal after graduating with a degree in law from the University of Sheffield. Whilst working for PainSmith he completed the Legal Practice Course at weekends completed a training contract at the firm and has been taken on by the firm as a fully qualified Solicitor. After receiving considerable training provided by PainSmith, Richard joined the legal helpline and has been one of the advisers on the helpline for over four years.

He has over five years of experience in Landlord and Tenant law and his normal work load ranges from case handling of possession matters, deposit disputes, drafting of tenancy agreements, advising on HMO properties and debt and disrepair claims. He is experienced in lengthy and complex litigation and settlement negotiations.

David Whitney

David Whitney is a solicitor and mediator. Prior to joining PainSmith five years ago he was a Partner in a West London practice. He has practised in the field of landlord and tenant law for about 20 years and has over the last 15 years developed a specialism in long residential leasehold work. His work encompasses dealing with all aspects of landlord and tenant including dilapidations claims, repossessions, enfranchisement, lease extensions, RTM applications and service charge disputes to name a few. In the past 12 months alone David has assisted over 200 hundred flat owners to either purchase their freehold or extend their lease. David understands the, often, competing interests of differing parties and prides himself on giving clients pragmatic and commercial advice. David also sits as a fee-paid Judge of the First Tier Tribunal (Property Chamber) on the Southern Region and as a member of its mediation panel.

Marveen Smith

Marveen Smith was one of the founders of PainSmith Solicitors in 2001 and has been the only Principal of PainSmith Solicitors a niche firm who are specialists in property law since 2006. Marveen has a background in accountancy and tax; forging a second career in law by qualifying as a Solicitor before starting her own practice. As well as working in her legal practice daily Marveen is one of the trainers for ARLA and other organisations presenting legal courses throughout the country; giving presentations at regional meetings for ARLA; and at seminars for landlords. Marveen has made regular appearances on Money Box for Radio 4 and Watchdog where she endeavoured to balance the one sided view of letting agents that can be presented by the media, as well as disseminating information to enable landlords to act in a more professional capacity. Marveen was the first person to establish a legal helpline for landlords and agents; and to offer both standard and bespoke documents designed specifically for the lettings industry. Today PainSmith offers a wide choice of legal documents to satisfy the requirements of both relocation companies, letting agents and landlords.